R.Kalamma, vs The State Of Telangana,
2022 Latest Caselaw 5006 Tel

      THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI

                 WRIT PETITION NO.38941 OF 2016

                                   AND

                 CONTEMPT CASE NO.847 OF 2017

                           COMMON ORDER


      W.P.No.38941 of 2016 has been filed seeking a Writ of

Mandamus declaring the action of the respondents in not releasing the

pensionary benefits and arrears of salary which was due to the husband

of the petitioner on his retirement from service on 31.12.2014, as illegal

and arbitrary and to consequently direct the respondents to release the

entire pension and pensionary benefits including gratuity and all other

benefits, arrears of salary which was due to the husband of the

petitioner, to the petitioner with interest and all consequential benefits.

2. Heard the learned counsel for the petitioner and the learned

Government Pleader for Services.

3. The learned counsel for the petitioner had filed amendment of

prayer in I.A.No.1 of 2019 and the same was allowed on 24.01.2020 and

the claim of the petitioner was to call for the records vide proceedings W.P.No.38941 of 2016 & C.C.No.847 of 2017

dt.03.07.2017 and dt.09.09.2017 and to suspend the same as illegal and

arbitrary.

4. Brief facts leading to the filing of the present Writ Petition are

that the petitioner's husband was initially appointed as Police Constable

in IV Battalion at Warangal on 30.03.1981 and had completed his period

of probation satisfactorily. Subsequently, he was deputed to Prohibition

and Excise Department on 01.10.1993 and was posted in Khammam

District and was finally absorbed as Prohibition and Excise Constable

vide proceedings bearing No.1121/2006/P & Ex/A1 dt.26.05.2009.

Thereafter, he was transferred to Warangal vide proceedings,

dt.06.09.2010 and he discharged his duties accordingly. The petitioner's

husband came to know that his date of birth has been altered from 1956

to 1953 without his knowledge. Therefore, he submitted a representation

dt.29.03.2014 to his parent department and in turn, the Additional

Commandant, IV battalion, A.P.S.P., Mamnoor Lines, Warangal

requested the Prohibition and Excise Superintendent to send the Service

Book of the petitioner's husband for taking further action on the

representation of the petitioner vide proceedings dt.07.04.2014.

Subsequently, the petitioner's husband was directed to report before the W.P.No.38941 of 2016 & C.C.No.847 of 2017

SHO, Prohibition and Excise Station, Gudur, by proceedings

dt.09.05.2014 and accordingly, he joined at Gudur on 10.05.2014, but

the salary and other allowances were not paid to him even till his

retirement date. It is submitted that though the petitioner was shown due

to retire on 31.12.2014 by the proceedings of the 3rd respondent in

Rc.No.1368/2011/P&E/A1, dt.15.04.2014, but no retirement

proceedings have been issued to him and he was allowed to continue in

service till 31.12.2014. Thereafter, after retirement, when the pension

and other retirement benefits were not released to him, he filed a

representation dt.16.02.2015 for release of salary and other retirement

benefits. But, the same were not paid. Meanwhile, the petitioner's

husband died on 30.11.2015. Therefore, the petitioner has filed this Writ

Petition.

5. This Court, vide orders dt.28.11.2016 in W.P.M.P.No.47989 of

2016, directed the respondents to consider releasing of pension and

other benefits and also arrears of the salary to the petitioner which are

due to her on the death of her husband within a period of four weeks

from the date of receipt of a copy of the order and communicate their

decision thereon to the petitioner.

W.P.No.38941 of 2016 & C.C.No.847 of 2017

6. Thereafter, the petitioner filed C.C.No.847 of 2017 against the

respondents for non-implementation of the above orders dt.28.11.2016.

7. The respondents thereafter passed orders dt.03.07.2017 directing

the District Audit Officer to sanction the family pension with effect

from 01.01.2009 which is the due date of retirement, if his date of birth

is taken as 19.12.1950 and also to recover an amount of Rs.18,06,030/-

from the pensionary benefits of the petitioner's husband by taking the

period of service of the employee only up to 2009 by adopting the date

of birth of the deceased employee as 19.12.1950.

8. Subsequently, another order dt.09.09.2017 has also been passed

for recover of an amount of Rs.18,06,030/- from the pensionary benefits

of the petitioner's husband and sanction pension amount from

01.01.2009 to 30.11.2015 and to release the gratuity after recovery of

the above amount from the petitioner. These two orders have been

challenged by the petitioner in the present Writ Petition by filing the

amendment petition which has been ordered as noted above.

W.P.No.38941 of 2016 & C.C.No.847 of 2017

9. Learned counsel for the petitioner, Sri K. Arvind Kumar, submits

that the respondents have not initiated any disciplinary proceedings

either during the service or after this retirement of the petitioner's

husband and therefore, any disciplinary proceedings which are initiated

against the petitioner's husband after his retirement or after his death got

abated on his death and therefore, the respondents could not have

withheld the sum of Rs.18,06,030/- from the pensionary benefits of the

deceased employee.

10. The learned Government Pleader, however, supported the

averments made in the counter affidavit filed in C.C.No.847 of 2017 and

submitted that the petitioner's husband, the employee, himself confessed

about altering his date of birth in his service book from 1950 to 1956

and therefore, it is a clear case of fraud played by him and the pecuniary

loss caused to the Department can be recovered from the pensionary

benefits of the employee as per G.O.Rt.No.1097, Finance & Planning

(FW.PEN.I) Department, dt.22.06.2000. The learned Government

Pleader placed particular reliance upon Para 4 of the said Government

Order. She further submitted that since the employee himself had W.P.No.38941 of 2016 & C.C.No.847 of 2017

confessed about altering of his date of birth, Para 4 of G.O.Rt.No.1097

would apply and in accordance therewith, the respondents are entitled to

recover the pecuniary loss caused to the respondents because of the

fraud committed by the employee.

11. The learned counsel for the petitioner, on the other hand, placed

reliance on a Judgment of the Hon'ble Supreme Court in the case of

State of Punjab and others Vs. Rafiq Masih (White Washer) and

others1 for the proposition that recovery from the employee's

pensionary benefits is not permissible in law in the circumstances

mentioned therein. According to the petitioner, this case also falls in one

of the exemptions as enumerated in the above Judgment of the Hon'ble

Supreme Court (1 supra). He also placed reliance upon the Judgment of

a Division Bench of this Court dt.29.09.2008 in W.P.No.21465 of 2008

for the proposition that the disciplinary proceedings would abate on the

death of the delinquent employee.

12. Learned Government Pleader relied upon a judgment of the

Gujarat High Court in the case of Pineshbhal Amrutlal Patel Vs.

(2015) 4 SCC 334 W.P.No.38941 of 2016 & C.C.No.847 of 2017

Education Officer and 2 others2 for the proposition that when the

accused has accepted his guilt before the authorities, no further

procedure was required to be followed.

13. Having regard to the rival contentions and the material on record,

it is noticed that in the counter affidavit, the respondents admitted to the

fact that the petitioner's husband was allowed to work up to 31.12.2014

and even though they have stopped paying salary from 01.01.2014, no

action has been initiated against him till the date of his retirement on

31.12.2014 or thereafter. The respondents stated that they have

conducted a detailed enquiry during which the petitioner's husband had

admitted to tampering of his date of birth in his service book, and in

support of this contention, a copy of the handwritten note of the

petitioner's husband dt.27.10.2014 is produced. However, in the said

letter, it is mentioned that the date of birth is changed from 19.12.1953

to 19.12.1956. If the letter were to be considered to be true and correct,

then the date of birth mentioned therein, i.e., 19.12.1953 would have to

be considered and not 19.12.1950. However, as per the school

2017 (2) GLR 1627 W.P.No.38941 of 2016 & C.C.No.847 of 2017

certificates of the petitioner's husband, obtained by the respondents, his

date of birth is mentioned as 19.12.1950. But, before the petitioner's

husband could be confronted with these documents, he died and

therefore, the disciplinary proceedings could not have been continued

and thus abated. The respondents cannot proceed against the legal heirs

of the deceased employee to prove his actual date of birth. Since,

admittedly, the petitioner's husband worked till 31.12.2014, he is

entitled to the salary till 31.12.2014 and other retirement benefits till the

date of his death and thereafter, the petitioner is eligible for family

pension.

14. In view thereof, the impugned orders dt.03.07.2017 and

09.09.2017 are set aside and the respondents are directed to pay the

salary of the petitioner's husband from 01.01.2014 to 31.12.2014 and

also all the pensionary benefits including gratuity with interest @ 6%

per annum till the date of payment. The entire amount shall be paid

within a period of three (3) months from the date of receipt of a copy of

this order.

15. Accordingly, this Writ Petition is allowed.

W.P.No.38941 of 2016 & C.C.No.847 of 2017

16. In view of the above orders, the Contempt Case is also closed.

17. Pending miscellaneous petitions, if any, in the Writ Petition and

the Contempt Case shall stand closed.

___________________________ JUSTICE P. MADHAVI DEVI Date: 11.10.2022 ?/Svv